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Reported Case

Kigen & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286 (11 December 2015)

Date: 11/12/2015
Duncan Lewis, Reported Case Solicitors, Kigen & Anor, R (on the application of) v Secretary of State for the Home Department [2015] EWCA Civ 1286

In the Court of Appeal (Civil Division) - On Appeal from the Upper Tribunal -(Immigration and Asylum Chamber)

This is an appeal against the order of Upper Tribunal Judge Freeman dated 12th February 2015 dismissing the appellants' application for an extension of time in which to renew their application for permission to apply for an order under section 15 of the Tribunals, Courts and Enforcement Act 2007 (commonly described as a claim for judicial review).

The appellants, Mr. Frank Kigen and his wife, Mrs. Janet Cheruiyot, are seeking to establish that they are entitled to be granted leave to remain in the United Kingdom by reason of Mr. Kigen's descent from his maternal grandfather. It is unnecessary for the purposes of this appeal to recite the course of the proceedings which have led to the present appeal. Suffice it to say that the appellants are seeking to challenge by way of judicial review the latest decision of the Secretary of State rejecting their claim.

The Secretary of State's decision was conveyed to the appellants in a letter dated 30th May 2014. In the ordinary way time for issuing proceedings for judicial review would have expired on 30th August, but that was a Saturday and it is therefore accepted that in this case time expired on Monday, 1st September 2014. The appellants issued their proceedings on Tuesday, 2nd September, one day late.

The necessary application for permission was considered by Upper Tribunal Judge Kekic on the papers. She noted that the claim had been commenced out of time and declined to admit it because she did not think that a satisfactory explanation had been given for the delay. There are two formal documents recording her decision, one dated 3rd October 2014 and one dated 3rd November 2014, in identical terms. No explanation for that strange state of affairs has been given. Judge Freeman later recorded that the decision had been sent to the appellants' solicitors on 3rd October 2014, but that they said they had not received it until 5th November 2014. It seems more likely, therefore, that the second document was sent out rather than the first, but in the end nothing turns on that question. Like the judge, I am content to proceed on the basis that the decision in question was communicated to the solicitors on 5th November 2014.


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